Immigration authorities announced Monday that over 2,000 foreigners who had criminal convictions had been arrested during a five day nationwide operation in early March. This “sweep” was conducted primarily by the Immigration and Customs Enforcement Agency. Alejandro Mayorkas, Deputy Secretary of the Department of Homeland Security, conducted a news conference in Washington, saying, “It had focused on deporting people who were the department’s top priorities because they posed serious public safety or national security threats.” Security officials went on to state that of the more than 2,000 people arrested “hundreds of them had convictions of driving under the influence of drugs or alcohol.” Advocates for immigrants have asked for leniency for immigrants with drunk driving cases, saying that oftentimes they were workers supporting their families. But immigration officials said Monday that they regarded those drivers as “a significant public safety threat.”Read More

A central part of President Obama’s immigration policy is showing tough immigration enforcement. President Obama’s controversial executive actions that protect millions of immigrants from deportation has been controversial – and has currently been placed on hold by a federal judge in Texas.

The significance of this story is that a cabinet leveled agency has now defined and labeled drivers convicted of DUI/drunk driving as “a significant public safety threat.” It has never been more important to hire an experienced and aggressive DUI/drunk driving defense team to work for you if you have been arrested and charged with DUI. Remember – “an arrest is not a conviction!”

Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™ for criminal defense. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.
Link to Story: http://www.nytimes.com/2015/03/10/us/us-immigration-authorities-arrest-foreigners-convicted-of-crimes.html?_r=0

A South Carolina State Senate Subcommittee recently heard arguments from both sides regarding a pending bill that would require all South Carolina police officers to wear body cameras. Briefly – the bill would require all law enforcement officers in South Carolina to wear body cameras that would record all of their contact with the public.

The voices against mandatory body cameras (primarily from law enforcement) point to the cost of outfitting all officers along with the cost of storing doubt. The data storage cost could be substantial when one thinks about the volumes of footage that would have to be retained and stored for years under current Freedom of Information Act requirements. Several estimates put the anticipated storage expenses into millions of dollars a year for some cities. Other concerns raised would include privacy; for example, when an officer comes into a home on a criminal domestic violence call; or, officers working undercover. Certainly all of the issues raised have merit.Read More

Supporters of body cameras argue that they help courts close cases faster, reduce the number of items that officers use force, and make allegations of misconduct against officers easy to investigate for both parties.

An interesting question for South Carolina drivers accused of DUI/drunk driving, is how would mandatory body cameras fit within the current statutory scheme of SC Code 56-5-2953? An argument could be made that the video recording requirements present in DUI investigations would be extended to cover all officers present with body cameras if they recorded any field sobriety tests administered to the driver; and/or show the person being arrested; and/or showed the driver being advised of their Miranda rights. Critically – these are all mandatory requirements of South Carolina’s current DUI law as it relates to “dash cams.” If South Carolina makes “body cams” mandatory then I believe a strong argument could be made under SC Code Section 56-5-2953 that all body cam footage be provided to the defense prior to a DUI/drunk driving trial. An interesting question would be if an officer has a body cam and does not follow the requirements of 56-5-2953, what is the remedy? The current judicial remedy for failure of the police to meet the requirements 56-5-2953 is dismissal of the DUI/drunk driving charge.

Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™ for criminal defense. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.

On January 28, 2015, SC House Bill “H.3441″ was introduced and read for the first time in the 2015 South Carolina General Assembly session; and on that same day it was referred to the South Carolina House Judiciary Committee (see link below to full version of the bill). In summary, H.3441 would substantially cut down and virtually eliminate current mandatory video recording requirements for DUI/drunk driving investigations in South Carolina. The primary changes proposed in H.3441 consist of replacing the words “must” and “shall” with “should”. In other words – the video recording “should” begin no later than the activation of the officer’s blue lights; “should make a reasonable attempt to video record the driver”, ” should include the entire breath test procedure”, etcetera.Read More

While there are many reasons to vigorously oppose this bill, below please find a few that quickly come to mind:

1. That it is not difficult for law enforcement to comply with the requirements of our current statute in video recording the complete field sobriety tests in a DUI case. Since the performance and results of a field sobriety test are critical are often relied upon as critical evidence in a DUI prosecution, the requirement that all field sobriety tests be completely viewable by a jury should remain intact.

2. The recent South Carolina Court of Appeals opinion in State vs. Taylor has clarified what elements a field videotape must have – and that anything not statutorily required does not have to be captured on the videotape for successful prosecution to occur. Since 2009 our appellate courts have done an excellent job of interpreting and clarifying the requirements of our videotaping law. This latest opinion shows the common sense approach of our courts – and how that is progressing steadily.

3. “Cutting back or watering down” our current dash cam requirements would probably result in monies currently being used for installation and maintenance of cameras to be diverted elsewhere. If the law does not require it – then those dollars are ultimately going to be placed somewhere else in the budget. In just a few short years many of the police cars currently equipped with functioning dash cams could disappear. There is no way to overstate the evidentiary value of video recording in 2015. There is simply no way to do it.

As I have done in the past – I will continue to vigorously oppose any changes to our DUI video recording law in South Carolina.

Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™ for criminal defense. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.

South Carolina State Senator Paul Thurmond introduced a bill in the State Senate on January 13, 2015, to clean up confusion regarding the right of a South Carolina driver to have a DUI/drunk driving arrest expunged from their criminal history information. “S.255″ makes it clear that any South Carolina driver acquitted of DUI/drunk driving (by negotiated agreement or judicial dismissal) is eligible for the initial charge to be expunged (erased) from all criminal record keeping entities.Read More

It has always been the case in South Carolina that any criminal charge for which a person is acquitted, or the charge is dismissed, etcetera was eligible to have the charge expunged from their record. Unfortunately, a Scribner’s error in the latest version of South Carolina Code Section 17-1-40 (E)(1) has resulted in South Carolina driver’s not being able to expunge the original DUI/drunk driving charge. The latest version of South Carolina Code Section 17-1-40 became effective on January 9, 2014. This mistake was not intended to happen – and Senator Thurmond is leading the charge to rectify it.

Additionally, Senator Thurmond’s bill (see below for link to the bill itself) would also require any and all websites that contain arrest and booking records – or mug shots – of South Carolina citizens acquitted of any criminal charges to expunge these records upon a proper request. If passed into law, Senator Thurmond’s bill would be a substantial improvement over South Carolina’s current expungement statute (see link below). Even assuming the current mistake is corrected allowing for the expungement of DUI/drunk driving arrests, the current statute does not reach or apply to private websites which in 2015 are in existence and do publish arrest and booking records of South Carolina citizens. This would be a vast improvement over the current law and allow South Carolina drivers accused of DUI/drunk driving to have all information connected with that arrest expunged from both public and private sources – assuming an acquittal occurs.

Let’s hope Senator Thurmond’s bill becomes the law in South Carolina soon. It would remedy the Scribner’s error described above and allow the resumption of expungements on DUI/drunk driving charges – and, stretch out to encompass private entities who publish this information as well.

Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™ for criminal defense. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.

In 1998 South Carolina became one of the first states to require and mandate video recording from the officer’s dash cam in DUI/drunk driving cases. In 2009 the South Carolina legislature passed a new, amended and updated law requiring both incident site and breath test site video recordings in DUI cases. Our current law requires that a driver who is accused of violating the DUI law “must have his conduct at the incident site and the breath test site video recorded… the video recording at the incident site must: not begin later than the activation of the officer’s blue lights; include any field sobriety tests administered; and include the arrest of the driver for the DUI violation and show the driver being advised of their Miranda rights.” Likewise – a video recording of the complete breathalyzer testing procedure must also be provided (see full text of SC Code Section 56-5-2953 link below).Read More

In 2009 the legislature also dramatically increased and stiffened penalties in most DUI cases. For instance – a driver convicted of DUI in South Carolina with a breathalyzer reading of .16 or higher is subject to ninety (90) days in jail. Recent court decisions have mandated that law enforcement simply follow the law when making DUI/drunk driving cases – and that the dash cam and breathalyzer videos must comply with the law currently in place. Our courts have developed a harsh remedy for non-compliance with the video recording requirements – potential dismissal of the DUI charge.

Quite simply – the law is in place and the stakes are high – so dismissal must be the only and appropriate remedy for police officers not following the law with video recording.

Yesterday in Columbia, South Carolina, some members of the South Carolina Sheriff’s Association, prosecutors and victim advocates from across South Carolina met on the statehouse grounds and called upon the South Carolina General Assembly to eliminate and cut back the video recording provisions of the state’s DUI laws that I noted above. During the media conference, officials presented four videos that showed DUI suspects where the videos did not meet the requirements of our law – and the cases were dismissed.

Legislation has been introduced in both the South Carolina House and Senate that would prevent a DUI case from being dismissed if a problem exists in the video recording of the initial stop.

Sixteenth Circuit Solicitor Kevin Brackett, York County Sheriff Bruce Bryant and MADD state director Steven Burritt were among those who addressed the media requesting that our legislature cut back on the current video recording requirements in DUI cases.

I am not one of those voices, and I will continue to appear at legislative subcommittee hearings to fight any attempts to scale back on our videotape law in DUI cases. I have done so many times in the past – and will do so again this year. It is only common sense that if field sobriety tests are going to be used to gain a conviction in court – that they be completely viewable to a jury. It is critical that this fair and well thought out law passed in 2009 requiring video recording in DUI cases be kept completely intact. To cut back on our video law would take us back to the days of when police officers could fabricate how a driver performed on certain field tests in front of a jury. The mandated video recording evidence should – and does – speak for itself in a jury trial for DUI. Let’s hope that any changes to our DUI law eliminating or cutting back on video recording do not take place.

Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™ for criminal defense. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.

On December 2, 2014, WSPA -TV in Spartanburg, South Carolina reported that two South Carolina state senators announced that they would be pre-filing legislation today which would require all state and local police officers to be equipped with body-worn cameras. Read More

In addition to the Michael Brown case in Ferguson, MO., there have been several situations in South Carolina where body cameras would have “brought some reassurance to the community that they can believe in the judicial system” according to Charleston Senator Marlon Kimpson. President Obama earlier announced that his proposed spending plan would add body cameras to police departments across the country. Mandatory body cameras would have a direct impact on DUI/drunk driving cases in South Carolina.

Pursuant to DUI/drunk driving investigation protocol – as put forward by the National Highway Traffic Safety Administration – the first field sobriety test that should be offered in a DUI/drunk driving investigation is the “Horizontal Gaze Nystagmus Test.” According to the NHTSA manual “it is necessary to emphasize that validation of this test only occurs when: The test is administered in the prescribed standardized manner; standardized clues are used to assess the driver’s performance; and standardized criteria are employed to interpret that performance.” Furthermore, the NHTSA manual expressly states that “this field sobriety test is not at all flexible and must be administered every time exactly as outline in the training course.”

To correctly administer the HGN test there are no less than 14 points or checks when the test is administered correctly. For example, the stimulus should be held approximately 12-15 inches above eye level, do the eyes lack smooth pursuit? Was nystagmus detected at maximum deviation?

Additional clues would include the following: 1. Did the driver understand the test? 2. Did the driver keep their head still during the test? 3. Did the driver stand straight and keep his hands by his side at all times? 4. Did the driver sway or rock during the administration of the test? 5. Did the driver stumble or fall while attempting this test? 6. Did the driver follow the directions given by the police officer?

The mandate or requirement of body worn cameras in DUI/drunk driving cases would certainly allow for a more thorough and complete examination of whether or not the proper protocol was followed in the administration of this test.

At the office of Attorney Steve Sumner we relentlessly examine the administration of every field sobriety test if it was used as a basis to arrest and charge our clients with DUI. We support this legislations so that we can do our job better and vigorously and zealously representing our clients in our efforts to defeat these charges.

Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™ for criminal defense. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.

For years South Carolina has been recognized as a leader with its DUI video recording law. South Carolina continues to show the nation that we are willing to lead the way and pave the path in a critical area of our criminal justice system: video recording laws for police. Read More

Recent incidents involving law enforcement shootings in Ferguson, MO and Columbia, SC illustrate how critical mandatory video recording laws are, and how South Carolina is a leader in this area.

The video recording of Michael Brown being shot by a Ferguson, MO police officer lead to terrible civil unrest and military style police patrolling the streets of that city. Protest marches occurred daily. A mandatory curfew had to be put into effect. Critically, it was a video recording made by bystanders of the event that contradicted the police version. In other words it was citizens acting on their own that captured this important video footage that led to the public outrage that engulfed Ferguson for several weeks. It was not a video recording from a police officer’s camera.

By contrast, the police shooting of Levar Jones in Columbia was recorded both visually and audibly by the trooper’s statutorily mandated in-car video recording system. As a result, we know that then-Trooper Sean Groubert’s claim that he began firing only after ones came back out of his vehicle with something in his hand was not true. What could have been a swearing contest between a white trooper and an African-American man, sparking the same type of unrest as in Ferguson became an example of the system addressing misconduct by the trooper both administratively and criminally.

As a Greenville, South Carolina DUI defense attorney I played a significant role in helping to author South Carolina’s videotaping law in DUI/drunk driving cases. In the mid to late 90′s I was asked to be a part of the committee that drafted SC Code Section 56-5-2953 for the judiciary committee. I am proud to say that it was the first mandatory videotaping law for DUI/drunk driving cases in the United States. Briefly – the statute requires that the arrest site recording of the suspect begin no later than the activation of the blue lights on the police vehicle and that it include the administration of any field sobriety tests given in the investigation. While other states have followed suit and adopted their own video recording laws, South Carolina’s still remains one of the strongest for the benefit of the accused.

Our appellate courts have consistently held that the failure to strictly comply with our video recording law demands that the DUI/drunk driving charge be dismissed.

I will once again fight this upcoming year in Columbia to encourage and support our general assembly to maintain the requirements of our video recording law in DUI cases. However, every year, law enforcement groups, prosecutors and MADD lobby our legislature to change the law to make it easier to convict people accused of DUI. The goal of preserving material evidence so that the accused can receive a fair trial is worth fighting for every year.

Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™ for criminal defense. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.

The common occurrence of drivers having cell phones with them often creates situations where one motorist reports another motorist driving or actions to the police. With the tremendous surge and popularity of cell phones over the last 10 years, the number of cell phone calls that have led the police to stopping another motorist have increased dramatically. Our office handles numerous DUI/drunk driving cases that have originated with one motorist calling 911 to report erratic or suspect driving. It is an issue that we deal with often and examine closely in the defense of DUI charges. Read More

Two significant appellate court opinions regarding the propriety and requirements of “anonymous tips” as they relate to probable cause to stop another motorist came out in the last four months. Below I will highlight the critical points from each case, and then summarize their effect on South Carolina drivers arrested or charged with DUI/drunk driving from an “anonymous tip.”

First – in Navarette, the US Supreme Court affirmed and endorsed an arrest for DUI stemming from an “anonymous tip.” The key points that the US Supreme Court focused on in deciding that the 4th Amendment had been complied with in Navarette were as follows: First, it is a “totality of the circumstances” analysis that a court should engage in when evaluating whether or not the “anonymous tip” provides the requisite “probable cause” to stop a motorist under the suspicion of DUI/drunk driving and be in compliance with the 4th Amendment protections enjoyed by all citizens against unreasonable searches and seizures. In “anonymous tip” cases the crux analysis, in question, is did the tip exhibit “sufficient indicia of reliability” to justify the traffic stop? In Navarette, the US Supreme Court specifically noted the following facts from the case as establishing sufficient “indicia of reliability” to justify the traffic stop. These factors were eye witness knowledge, contemporaneous and timely reporting of the driving observed and the tipsters use of the 911 dispatch system. Additionally, the Court noted that the 911 call reported an “ongoing road emergency” which was significant and stronger than a tip that alleges just general criminal activity.

Using the Navarette analysis, the Nebraska Supreme Court reversed a DUI/drunk driving conviction which was based on an “anonymous tip.” This Nebraska Supreme Court opinion was filed August 29, 2014. In reversing the lower court and overturning the defendant’s conviction for DUI/drunk driving the Nebraska Supreme Court specifically noted that the officer in their case had made observations that raised doubts regarding the reliability of the “anonymous tip.” The officer directly observed an inconsistency in the 911 call; and the Court found that this contradiction of reliability had weakened the value of the “anonymous tip”; and overall, the tip in the Nebraska case exhibited much weaker indicia of reliability than the tip did in Navarette. Additionally, the Nebraska case did not involve the report of a “ongoing crime.” The Court noted that there was nothing in the content in the “anonymous tip call” that the driver was driving drunk or that the driver posed any type of threat of public harm by driving recklessly, etcetera. Again, using the Navarette analysis, the Nebraska Supreme Court overturned and reversed a DUI/drunk driving conviction based on an “anonymous tip.”

When representing South Carolina drivers accused of DUI/drunk driving – in cases involving “anonymous tips” – we examine all available information surrounding these “tips” to see if the stop of our client can be suppressed, and the case dismissed. We do this through extensively reviewing all available reports and dispatch recordings, interviews with the arresting officer and preliminary hearings where sworn factual testimony must be provided. The use of all of these tools is valuable in forming the very best argument we can for dismissal of the DUI/drunk driving charge against our client.

Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™ for criminal defense. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.

This summer, both the South Carolina Supreme Court and the South Carolina Court of Appeals, released significant opinions directly affecting jury trials and admissible evidence in DUI/drunk driving cases. Both of these court opinions will offer veteran defense attorneys more ammunition in defending their clients in DUI/drunk driving cases. At the end of this post you will see links to detailed summaries of both cases should you wish to read them. Read More

Quickly – in State v Gordon the South Carolina Court of Appeals affirmed the trial judge’s dismissal of a DUI charge because the defendant’s head could not clearly be seen on video while the police officer was conducting the HGN field sobriety test. The Court of Appeals held that the South Carolina DUI laws specifically require the video recording of all field tests; and therefore, dismissal was the only appropriate remedy in this case. In State v Sawyer a South Carolina Supreme Court opinion issued on June 4, 2014, the Supreme Court expressly held that all statutorily required video recordings sought to be admitted into evidence must contain both video and audio tracks to be admissible. In other words, if a video recording lacks audio of the encounter between the police officer and the driver then the appropriate remedy is suppression of that entire videotape from being received as evidence in the trial. The Supreme Court succinctly stated that the controlling DUI law in South Carolina requires audio; and if any significant amount of audio is not present, then the tape must be suppressed and not allowed into evidence at the trial in the case.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

On June 23, 2014, the US Supreme Court, without issuing any type of comment, denied the application to review a California Supreme Court ruling in November of 2013. That ruling, Vangelder v. California, No. 13-1012, held that defense attorneys could not present any evidence to challenge the accuracy and reliability of breath testing machines in general. The California Supreme Court made special note, in the opinion, that breath testing devices have been extensively tested by the appropriate arm of the California Assembly prior to being introduced for service and that they had also been certified as accurate (again, in general terms) by the United States Department of Transportation. A defendant in a DUI/drunk driving case is not allowed to present evidence or testimony challenging the overall reliability or accuracy of breath testing machines; although, a defendant can show that a particular breath testing machine was defective or used improperly in a specific case. Read More

Briefly – it’s a sad day when a defendant is barred from putting up a complete defense in a jury trial.

South Carolina drivers accused of DUI/drunk driving can put up a complete defense in a jury trial. Our code of laws in DUI/drunk driving cases specifically guarantees a defendant the right to challenge whether or not “the machine was working properly” and “present any evidence that may question the validity of the breath or bodily fluid test result…”.

The specific code section, §56-5-2930, which guarantees this right is published below:

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

On April 14th of this year Governor Haley signed S.137 (“Emma’s Law”) into law for South Carolina drivers. The provisions of Emma’s Law do not go into effect until October 1, 2014. This blog serves as a summary of the significant provisions of the law as it relates to South Carolina drivers facing DUI/drunk driving charges. The law also made significant changes to the penalties for drivers who failed to comply with the “ignition interlock device program”. Read More

I have linked the entire bill/law at the bottom of this blog if you would care to review any of the actual sections yourself which I am summarizing the significant sections below.

Section 2: The administrative process is detailed as it relates to the suspension of the driver’s license of a person under the age of 21 for driving with an unlawful alcohol concentration. This is not a criminal law or statute. The primary change here from the previous law is reducing the time period from five to three years in which a person who refuses to take a breath test, when lawfully asked, must have their driving record evaluated to see whether or not their driving privilege should be suspended for one year.

Section 3: Amends the previous South Carolina Code §56-1-400 and incorporates the new requirement of the issuance of a South Carolina drivers license that restricts the driver to only operate a vehicle fitted with an IID. This section also provides for an indefinite or lifetime suspension if a driver chooses not to participate and complete the IID program when required.

Section 9: Provides significant amendments to South Carolina Code §56-5-2941. A driver convicted of DUI/drunk driving who either refuses to take the breath test or has a breath test reading of .15 or higher must have an IID on their vehicle for six months. A person operating a motor vehicle that is not equipped with a certified IID device faces significant punishment. Likewise for disabling or tampering with an IID device; requesting another person to “blow” into the device to start your vehicle or obscuring the IID’s ability to capture a photographic image of the driver (yes, a certified IID device must be able to take a picture of the person blowing into the device and starting the vehicle every time).

Section 15: This section provides for significant amendments to South Carolina Code §56-5-2990. As noted above, the offenses and the IID required time periods are set forth below:

• First offense: Mandatory six month IID for refusing the breath test or registering .15 or higher;

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

On March 20, 2014, a key subcommittee hearing related to the potential passage of South Carolina Senate Bill S.137 (a/k/a Emma’s Law) was held at the South Carolina Legislature. The hearing was well attended and many voices were present urging the subcommittee to pass “Emma’s Law.” S.137 has been renamed “Emma’s Law” due to the tragic death of the child Emma Longstreet at the hands of a multiple and repeat drunk driving offender in Columbia last year. Her unfortunate death has galvanized community support for the passage of S.137. Debbie Ware, statewide chairman for MADD, emphasized that, according to several national studies, 67 percent of failed drunk driving collisions involve a repeat offender; and additionally, a repeat drunk driving offender is eight times more likely to be involved in a failed DUI accident than a driver with only one prior DUI conviction. After hearing testimony from various citizens, the subcommittee voted 5-0 to send “Emma’s Law” onto the full House of Representatives Criminal Law Committee for its consideration. Most observers believed that “Emma’s Law” will be fully endorsed by the South Carolina House of Representatives, the South Carolina Senate and will be signed into law by Governor Haley before the end of the 2014 session. Read More

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The major points which comprise” Emma’s Law” are as follows:

1. Ignition Interlock Devices:

First offense convictions for drunk driving: An IID would be mandatory on all drivers convicted in criminal court of first offense DUI if they refused to provide a breath sample or registered .15 or higher on the breath test that was a part of their criminal conviction for drunk driving.

2. Repeat offenders: Repeat drunk driving/DUI offenders will now be able to drive as soon as they can successfully enroll in the IID program. The focus here is in allowing repeat DUI offenders to drive legally with successful enrollment and completion of the IID program.

3. A 16 month lead time is envisioned between passage and implementation of “Emma’s Law” in order to give SC-DMV the necessary time to be able to fully implement “Emma’s Law” requirements.

4. “Emma’s Law” will contain a much stiffer penalty than is currently on the books for driving under suspension and for driver’s caught driving without their required IID.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

First, this is a confusing area of the law for many drivers who find themselves arrested or charged with DUI and also facing an “administrative suspension.” If you are confused it is probably because it is confusing. What is an “administrative suspension” and what is an “administrative hearing?”. Read More

The South Carolina law on point is fully listed below, but here are the highlights:

1. An administrative suspension is totally separate and distinct from the DUI charge. It is handled in front of a different court where different rules and procedures apply than the DUI charge.

2. An administrative suspension is usually sought against a driver in a DUI case who either refuses the breath test or takes the breath test and registers .15 percent or higher.

3. An administrative suspension from 30 days on up to six months, generally, is what is at stake for the driver in this administrative action. Any suspension levied administratively is in addition to any license suspensions levied because of a DUI conviction.

4. The hearing takes place before a hearing officer and not a jury. The basic issues are whether or not there was probable cause to justify the DUI arrest, and whether or not the breath test was offered according to SLED procedure.

5. An important point is that this hearing must be requested promptly within 30 days of the date of the arrest or else the driver has forfeited the right for this hearing.

(A) The Department of Motor Vehicles must suspend the driver’s license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 or has an alcohol concentration of fifteen one-hundredths of one percent or more. The arresting officer must issue a notice of suspension which is effective beginning on the date of the alleged violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.

(B) Within thirty days of the issuance of the notice of suspension, the person may:

(1) obtain a temporary alcohol license by filing with the Department of Motor Vehicles a form for this purpose. A one hundred dollar fee must be assessed for obtaining a temporary alcohol license. Twenty-five dollars of the fee must be distributed by the Department of Motor Vehicles to the Department of Public Safety for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the Department of Motor Vehicles to defray its expenses. The temporary alcohol license allows the person to drive without any restrictive conditions pending the outcome of the contested case hearing provided for in subsection (F) or the final decision or disposition of the matter. If the suspension is upheld at the contested case hearing, the temporary alcohol license remains in effect until the Office of Motor Vehicle Hearings issues the hearing officer’s decision and the Department of Motor Vehicles sends notice to the person that he is eligible to receive a restricted license pursuant to subsection (H); and

(2) request a contested case hearing before the Office of Motor Vehicle Hearings in accordance with its rules of procedure.

At the contested case hearing if:

(a) the suspension is upheld, the person’s driver’s license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension period provided for in subsection (I). Within thirty days of the issuance of the notice that the suspension has been upheld, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990;

(b) the suspension is overturned, the person must have his driver’s license, permit, or nonresident operating privilege reinstated.

The provisions of this subsection do not affect the trial for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.

(C) The period of suspension provided for in subsection (I) begins on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continues until the person applies for a temporary alcohol license and requests a contested case hearing.

(D) If a person does not request a contested case hearing, he waives his right to the hearing, and his suspension must not be stayed but continues for the period provided for in subsection (I).

(E) The notice of suspension must advise the person of his right to obtain a temporary alcohol driver’s license and to request a contested case hearing before the Office of Motor Vehicle Hearings. The notice of suspension also must advise the person that, if he does not request a contested case hearing within thirty days of the issuance of the notice of suspension, he waives his right to the administrative hearing, and the suspension continues for the period provided for in subsection (I). The notice of suspension also must advise the person that if the suspension is upheld at the contested case hearing or if he does not request a contested case hearing, he must enroll in an Alcohol and Drug Safety Action Program.

(F) A contested case hearing must be held after the request for the hearing is received by the Office of Motor Vehicle Hearings. The scope of the hearing is limited to whether the person:

(1) was lawfully arrested or detained;

(2) was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;

(3) refused to submit to a test pursuant to Section 56-5-2950; or

(4) consented to taking a test pursuant to Section 56-5-2950, and the:

(a) reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;

(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;

(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and

(d) machine was working properly.

Nothing in this section prohibits the introduction of evidence at the contested case hearing on the issue of the accuracy of the breath test result.

A written order must be issued to all parties either reversing or upholding the suspension of the person’s license, permit, or nonresident’s operating privilege, or denying the issuance of a license or permit. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol license and requested the contested case hearing.

The Department of Motor Vehicles and the arresting officer shall have the burden of proof in contested case hearings conducted pursuant to this section. If neither the Department of Motor Vehicles nor the arresting officer appears at the contested case hearing, the hearing officer shall rescind the suspension of the person’s license, permit, or nonresident’s operating privilege regardless of whether the person requesting the contested case hearing or the person’s attorney appears at the contested case hearing.

(G) A contested case hearing is governed by the Administrative Procedures Act, and a person has a right to appeal the decision of the hearing officer pursuant to that act to the Administrative Law Court in accordance with its appellate rules. The filing of an appeal stays the suspension until a final decision is issued on appeal.

(H)(1) If the suspension is upheld at the contested case hearing, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 and may apply for a restricted license if he is employed or enrolled in a college or university. The restricted license permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The restricted license also permits him to drive to and from the Alcohol Drug Safety Action Program classes or to a court-ordered drug program. The department may issue the restricted license only upon showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, or location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program.

(2) If the department issues a restricted license, it must designate reasonable restrictions on the times during which and routes on which the individual may drive a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of attendance of his court-ordered drug program, or residence must be reported immediately to the department by the licensee.

(3) The fee for a restricted license is one hundred dollars, but no additional fee may be charged because of changes in the place and hours of employment, education, or residence. Twenty dollars of this fee must be deposited in the state general fund, and eighty dollars must be placed by the Comptroller General into a special restricted account to be used by the Department of Motor Vehicles to defray the expenses of the Department of Motor Vehicles.

(4) Driving a motor vehicle outside the time limits and route imposed by a restricted license by the person issued that license is a violation of Section 56-1-460.

(I)(1) The period of a driver’s license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has no previous convictions for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, and who has had no previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:

(a) six months for a person who refuses to submit to a test pursuant to Section 56-5-2950; or

(b) one month for a person who takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.

(2) The period of a driver’s license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has been convicted previously for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, or who has had a previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:

(a) for a second offense, nine months if he refuses to submit to a test pursuant to Section 56-5-2950 or two months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more;

(b) for a third offense, twelve months if he refuses to submit to a test pursuant to Section 56-5-2950 or three months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more; and

(c) for a fourth or subsequent offense, fifteen months if he refuses to submit to a test pursuant to Section 56-5-2950 or four months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.

(J) A person’s driver’s license, permit, or nonresident operating privilege must be restored when the person’s period of suspension under subsection (I) has concluded, even if the person has not yet completed the Alcohol and Drug Safety Action Program in which he is enrolled. After the person’s driving privilege is restored, he must continue the services of the Alcohol and Drug Safety Action Program in which he is enrolled. If the person withdraws from or in any way stops making satisfactory progress toward the completion of the Alcohol and Drug Safety Action Program, the person’s license must be suspended until the completion of the Alcohol and Drug Safety Action Program. A person must be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before his driving privilege can be restored at the conclusion of the suspension period.

(K) When a nonresident’s privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must give written notice of the action taken to the motor vehicle administrator of the state of the person’s residence and of any state in which he has a license or permit.

(L) The department must not suspend the privilege to drive of a person under the age of twenty-one pursuant to Section 56-1-286 if the person’s privilege to drive has been suspended under this section arising from the same incident.

(M) A person whose driver’s license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.

(N) An insurer may not increase premiums on, add surcharges to, or cancel the automobile insurance of a person charged with a violation of Section 56-1-286, 56-5-2930, 56-5-2933, or 56-5-2945, or another law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug based solely on the violation unless he is convicted of the violation.

(O) The department must administer the provisions of this section and must promulgate regulations necessary to carry out its provisions.

(P) If a person does not request a contested case hearing within the thirty-day period as authorized pursuant to this section, the person may file with the department a form after enrolling in a certified Alcohol and Drug Safety Action Program to apply for a restricted license. The restricted license permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The restricted license also permits him to drive to and from Alcohol and Drug Safety Action Program classes or a court-ordered drug program. The department may issue the restricted license at any time following the suspension upon a showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program. The department must designate reasonable restrictions on the times during which and routes on which the individual may drive a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of his court-ordered drug program, or residence must be reported immediately to the department by the licensee. The route restrictions, requirements, and fees imposed by the department for the issuance of the restricted license issued pursuant to this item are the same as those provided in this section had the person requested a contested case hearing. A restricted license is valid until the person successfully completes a certified Alcohol and Drug Safety Action Program, unless the person fails to complete or make satisfactory progress to complete the program.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

As we move into 2014, I have taken the opportunity to briefly summarize some of the more critical DUI/drunk driving court opinions from 2013 that will affect South Carolina drivers accused or charged with DUI/drunk driving. Read More

US Supreme Court

Missouri v. McNeely 133 S. Ct. 832 (2013):

FACTS:

The defendant declined a breath test; and afterwards, he was arrested for DUI and forced to provide a blood sample. The arresting officer never attempted to obtain a search warrant prior to the blood test.

ISSUE:

Does the lone factor that a suspect’s blood alcohol level is dissipating justify a warrantless blood draw in DUI/drunk driving cases?

HOLDING:

No. In DUI cases, the natural dissipation of alcohol in a suspect’s blood stream does not constitute an “exigent circumstance” in every case sufficient to justify conducting a blood test without first obtaining a search warrant.

South Carolina Supreme Court

State v. Hercheck 743 SE 2d 798, 403 SC 597 (2013)

State v. Elwell 743 SE 2d 802, 403 SC 606 (2013) (these two cases were consolidated for the purposes of oral argument from the South Carolina Court of Appeals):

FACTS:

Both defendants verbally refused to offer a breath sample prior to the expiration of the twenty (20) minute observation period which is required in South Carolina prior to providing a breath sample. In both cases, the police officers terminated or ended the statutorily required videotaping of the defendant concurrent with their refusal to take the test, and prior to the expiration of the twenty (20) minute observation period.

ISSUE:

Does South Carolina Code Section 56-5-2953 require law enforcement officers to videotape a twenty (20) minute pre-test waiting period when the arrestee refuses to take the breath test?

HOLDING:

No. South Carolina Code Section 56-5-2953 does not require a law enforcement officer to videotape the entire twenty (20) minute pre-test waiting period once the arrestee refuses a breath test. A valid legal construction of the statutory subsection at issue is that only when the waiting period is required can the videotape recording also be required; and if no test is administered, then the twenty (20) minute waiting period is unnecessary and there does not have to be a videotape recording provided.

South Carolina Court of Appeals

Chisolm v. SCDMV 741 SE 2d 42, 402 SC 593 (2013):

FACTS:

The defendant was offered a breath test and actually blew into the DataMaster machine for approximately one minute and fifty-three seconds. The arresting officer testified that the machine was emitting a “steady tone” (meaning air was going into the breath testing instrument); however, the officer also testified that the instrument would ” just not read it”. Because the machine would not read the sample, the arresting officer considered it to be a “refusal” by the defendant to take the breath test and initiated a six month administrative suspension of her license.

ISSUE:

Does a “legal refusal” only take place when the defendant actually refuses the conscious act of blowing into the breath machine?

HOLDING:

Yes. South Carolina, a “legal refusal” only takes place when the test subject actually refuses the conscious act of blowing into the instrument.

City of Greer v. Humble 742 SE 2d 15, 402 SC 609 (2013):

FACTS:

The arresting officer did not have a video recording of the defendant pursuant to the requirements of SC Code Section 56-5-2953. The officer submitted a form affidavit certifying that the video recording equipment in his car at the time of the arrest was “inoperable and stating that reasonable efforts had been made to maintain the equipment in an operable condition.”

ISSUE:

Did the Circuit Court err in reversing the municipal court’s dismissal of Humble’s DUI charge because the affidavit required by South Carolina Code Section 56-5-2953(b) was deficient on its face?

HOLDING:

Yes, the Circuit Court erred in overturning the original dismissal of the DUI charge. The applicable statute now requires an officer to state which reasonable efforts had been made to maintain the video recording equipment in an operable condition. The affidavit Officer Williams provided to the municipal court did not state which reasonable efforts were made to maintain the video recording equipment in an operable condition; thus, the City of Greer failed to comply with the plain statutory requirements of Section 56-5-2953. A supplemental affidavit was never filed and the oral testimony presented at trial to supplement the affidavit was insufficient to meet the affidavit requirements of the statute.

The driver of a vehicle involved in a one car wreck was subsequently apprehended near the scene. The arresting officer found the defendant being examined by EMS in an ambulance. The officer then read the defendant his Miranda rights and performed a field test inside the ambulance. The defendant later failed the “ABC’s” field test. Once inside the patrol car, the officer turned the dashboard video camera toward the defendant and again read him his Miranda rights.

ISSUE:

Did the trial court correctly find that the video tapes offered into evidence complied with South Carolina Code Section 56-5-2953?

HOLDING:

No. Accordingly, the trial court’s decision was reversed and the defendant’s conviction for DUI was vacated. SC Code Section 56-5-2953(A) requires that the videotaping at the incident site “include the person being advised of his Miranda rights before any field sobriety tests are administered” if the tests are administered. Because the videotape did not include Sgt. Hiott giving the defendant Henkel his Miranda warnings, it did not conform to the provisions of SC Code Section 56-5-2953. Accordingly, the trial court was required to dismiss the charge, and it erred by not doing so.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

On December 27, 2013, Attorney Aaron Martin of Kennett Square, Pennsylvania filed a lawsuit in federal court on behalf of Ricardo Nieves challenging Reading, Pennsylvania’s city policy of systematically stopping innocent motorists without a court warrant, probable cause or any type of reasonable or articulable suspicion to believe that such motorists had committed a crime or violation of the Pennsylvania vehicle code. Attorney Martin challenges this policy as both illegal and unconstitutional. Read More

The facts as alleged in the complaint are as follows: On Friday, December 13, 2013, the plaintiff (Nieves) was traveling on the Bingham Street Bridge in the city of Reading, Pennsylvania. The plaintiff came upon orange security cones and a police department cruiser effectively “corralling” Nieves’ vehicle in the right hand lane. The plaintiff was flagged into the parking lot by a police officer. In the parking lot there were five to seven improvised parking spaces outlined with orange security cones. A female (referred to as Jane Doe) approached the plaintiff’s car with a clipboard in her hand. She informed the driver that he was not being “pulled over.” Jane Doe went on to state that the purpose of the vehicle stop was a survey of drivers’ behavior and that she wanted to take a cheek swab to check for the presence of prescription drugs. Nieves declined three separate times to provide a voluntary “cheek swab sample.” Ultimately, Nieves was able to drive away.

The lawsuit goes on to allege that the plaintiff believes that Jane Doe, and others, were acting as employees of a private corporation known as the “Pacific Institute for Research and Evaluation.” Furthermore, that PIRE received money from the federal government to research the driving habits of motorists. The complaint goes on to alleged that at all times the PIRE agents or employees were acting under the direct control or supervision and authorization of the Reading, Pennsylvania police department and with the approval and authorization of the mayor of Reading, Pennsylvania.

The initial relief being sought by the plaintiff from the federal court is that all of the defendants in the case be permanently enjoined and/or restrained from any further type of automobile stops of this nature. The complaint also alleges that an unlawful and unconstitutional seizure of the plaintiff took place on the day in question, and that he is entitled to damages for “false imprisonment” for the time related to the unconstitutional stop and seizure.

It has subsequently been determined that the incident in question is part of an eight million dollar National Highway Traffic Safety Administration grant to PIRE to test approximately 7,500 drivers from sixty different locations to study the “driving habits of Americans.”

Indiana United States Senator Dan Coats recently called on NHTSA to cease this program immediately pending congressional hearings and reviews into the matter.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

On December 27, 2013, the Los Angeles Police Department announced that portable/on the scene drug tests will be a part of this year’s New Year’s Eve drunk driving checkpoints in the Los Angeles metropolitan area. Los Angeles City Attorney Mike Feuer held a news conference last Friday where he announced the expansion and use of oral swabs for this year’s New Year’s Eve DUI/drunk driving roadblocks. Read More

Specifically, the oral fluids test will screen for cocaine, Xanax, methamphetamine, methadone and marijuana if any of these substances have been used within the past several hours. According to Feuer, the roadside drug test takes about eight minutes to administer. Interestingly, Los Angeles city prosecutors have yet to ever use the results from any of these portable drug tests as evidence in a DUI/drunk driving prosecution.

This year, a little over 1,500 drivers were arrested for DUI across Los Angeles county in the mid to latter part of December, 2013.

As a South Carolina DUI/drunk driving defense attorney, I would raise the following points of attack if any upstate police agency announced the anticipated use of portable drug tests (PDT’s) at a checkpoint anywhere in South Carolina:

1. First, would or did the DUI/drunk driving checkpoint or roadblock in question fully and completely comply with the legal requirements for checkpoints or roadblocks in South Carolina? The digest or summaries of significant recent decisions in South Carolina DUI cases regarding checkpoints or roadblocks are fully addressed below.

2. Has the South Carolina statutory scheme that is in place been scrupulously followed?

a. Pursuant to South Carolina Code Section 56-5-2950, a driver suspected of DUI “….at the direction of the arresting officer, the person first must be offered a breath test to determine the person’s alcohol concentration. If a person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious or dead, or for any other reason considered acceptable by the licensed medical personnel, the arresting may request a blood sample to be taken. If the officer has reasonable suspicion that the person is under the influence of drugs other than alcohol, or is under the influence of a combination of alcohol and drugs, the officer may order that a urine sample be taken for testing….” .

I would certainly argue that a South Carolina driver arrested or investigated for DUI/drunk driving must first be offered a breath test under the statute before any type of drug test can be offered.

3. Would a PDT have to be previously and prior approved by the South Carolina law enforcement division (SLED)? I would argue that under South Carolina Code Section 56-5-29502 that because all breath, blood and urine samples must be obtained and handled in accordance with procedures approved by SLED; that logically, the same requirements would have to be in place regarding any type of portable drug test or oral swab drug test.

4. Has the officer who is administering the PDT been trained and certified by the South Carolina Criminal Justice Academy, and pursuant to SLED policies, in administering the portable drug test? Again, under South Carolina Code Section 56-5-2950, these are the rigid and strict requirements that are in place for the results of a breath or blood test to be admitted in a DUI/drunk driving prosecution in South Carolina.

5. Would or have the testing procedures and results been obtained and handled in accordance with procedures approved by SLED in these type cases? For example, would the roadside swab then be sent to SLED for further testing? Is there any type of backup or confirmatory tests that would have been used to verify the results of the roadside swab test? How would the swab get to the SLED laboratory? How would it be stored and handled? How would it be stored prior to and how would it be handled on its way to SLED?

These are just a few of the questions that I would have if any South Carolina police agency attempted to use portable drug tests (PDT’s) at DUI/drunk driving road checks or checkpoints as apparently it’s going to take place in Los Angeles, California at the end of 2013.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

On November 21, 2013 the California Supreme Court issued a puzzling opinion in a DUI/drunk driving case. Basically, the Court held that a defendant cannot offer expert testimony to challenge the general reliability and accuracy of a breath testing machine in California DUI/drunk driving prosecutions. See full digest of opinion below: Read More

As an attorney representing South Carolina drivers accused of DUI/drunk driving, I would raise the following points and arguments to make sure that South Carolina drivers can always challenge the accuracy and reliability of breath testing machines in DUI cases:

1. §56-5-2935. Right to a Jury Trial.

Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 who is being tried in any court of competent jurisdiction in this State must have the right of trial by jury. A person charged with one or more of these offenses shall enjoy the right to a speedy and public trial by an impartial jury, to be fully informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses, documents, or both, and the right to be fully heard in his defense by himself or by his counsel or, by both.

The right to a jury trial for a South Carolina driver accused of DUI/drunk driving is guaranteed by this law. This law also guarantees that a defendant has “the right to be fully heard in his defense by himself or by his counsel or, by both.” Most assuredly the right to be fully heard would include the right to call a properly qualified expert witness to share the inherent flaws of the DataMaster machine with the jury.

2. §56-5-2933. Driving with an unlawful alcohol concentration.

“…(I) A person charged for a violation of Section 56-5-2930 may be prosecuted pursuant to this section if the original testing of the person’s breath or collection of other bodily fluids was performed within two hours of the time of arrest and reasonable suspicion existed to justify the traffic stop. A person may not be prosecuted for both a violation of Section 56-5-2930 and a violation of this section of the same incident. A person who violates the provisions of this section is entitled to a jury trial and is afforded the right to challenge certain factors including the following:

(1) whether or not the person was lawfully arrested or detained;

(2) the period of time between arrest and testing;

(3) whether or not the person was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;

(4) whether the person consented to taking a test pursuant to Section 56-5-2950, and whether the:

(a) reported alcohol concentration at the time of testing was eight one hundredths of one percent or more;

(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;

(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950 and regulations adopted pursuant to Section 56-5-2951(O) and Section 56-5-2953(F); and

(d) machine was working properly.

(J) Nothing contained in this section prohibits the introduction of:

(1) the results of any additional tests of the person’s breath or other bodily fluids;

(2) any evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to:

(a) evidence of field sobriety tests;

(b) evidence of the amount of alcohol consumed by the person; and

(c) evidence of the person’s driving.

(3) a video recording of the person’s conduct at the incident site and breath testing site taken pursuant to Section 56-5-2953 which is subject to redaction under the South Carolina Rules of Evidence; or

(4) any other evidence of the state of a person’s faculties to drive which would call into question the results of a breath or bodily fluid test.

At trial, a person charged with a violation of this section is allowed to present evidence relating to the factors enumerate above and the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence. A person charge with a violation of this section must be given notice of intent to prosecute under the provisions of this section at least thirty calendar days before his trial date.

Key provisions of the South Carolina “per se” (DUAC) law are as follows: First, a driver charged with a violation of this section is allowed to present evidence relating to the factors above (i.e. was the machine working properly at the time of the test?) Second, a defendant is entitled to introduce “any evidence that may corroborate the validity of the breath test result.” In my opinion, both of these provisions, and the law as a whole, clearly allow a South Carolina driver accused of DUI/drunk driving to proffer a competent expert to highlight the many flaws and assumptions present in the DataMaster machine.

(3) SC Rule of Evidence, 702.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The seminal South Carolina case on point regarding the admissibility of expert testimony in criminal cases is State v Jones, 541 S.E.2d 813 (S.C. 2001). The crux of this South Carolina Supreme Court case, as it relates to the admissibility of expert testimony in criminal cases is as follows:

……

2. Expert Testimony

“A single boot print was found on Pipkin’s bloody kitchen floor. The “steel toe” boots which made the impression, as well as another pair of “high-top” boots, were found in the room appellant rented at Brown’s parents’ home. Brown claimed appellant wore the “steel toe” boots connected to the crime, while he wore the pair of high-top boots also found in the room.

[343 S.C. 572] At trial, the State was permitted to introduce testimony that the “barefoot impressions” left on the “steel toe” boots’ insoles were consistent with the boots having been worn by appellant. Appellant contends this “barefoot insole impression” evidence is not scientifically reliable, and further that SLED agent Derrick who conducted the examination was not a qualified expert. Finally, he argues that even if there exists such a science, and even if Derrick were qualified, the prejudicial impact of the testimony outweighed its probative value. We find this “science” unreliable, and reverse the trial court’s decision to admit this evidence.

Scientific evidence is admissible under Rule 702, SCRE, if the trial judge determines: (1) the evidence will assist the trier of fact; (2) the expert witness is qualified; (3) the underlying science is reliable, applying the factors found in State v. Jones,273 S.C. 723, 259 S.E.2d 120 (1979); and (4) the probative value of the evidence outweighs its prejudicial effect. State v. Council,335 S.C. 1, 515 S.E.2d 508 (1999). The trial judge’s decision to admit or exclude the evidence is reviewed on appeal under an abuse of discretion standard. Id.

The central thesis of “barefoot insole impression” evidence is that the primary wearer of footwear, over time, begins to leave an impression of the wearer’s foot in the footwear’s insole. Inked impressions of the suspected wearer’s feet, photos of the suspected wearer’s known insoles, and a standing cast of the suspected wearer’s foot are compared to the impressions in the boots, both visually and by using calipers to compare distances between toes and other features among the various exhibits. A Canadian researcher (Kennedy), who testified for the State at trial, is currently conducting a study following R.C.M.P.[4] troopers and their new boots throughout the training process. Kennedy has compared the insole impressions made in some 200 Canadian army boots with the feet of the wearers. He began research in the area in 1989 after earlier work done by Dr. Louise Robbins was discredited.[5] Kennedy testified that different researchers use different

[343 S.C. 573] methods in making these type comparisons, but that he felt his method (the one used by Agent Derrick) was the best. He also testified that he has revised some of his statements, but none of his methods, based on comments received after publication of his peer-reviewed articles.

In conducting the tests here, Agent Derrick relied upon a talk he heard several years earlier, three books, two of which were published before 1989, and a phone conversation with Kennedy.

We agree with appellant that the “scientific” evidence admitted at his trial does not meet the requirements for admissibility, and therefore need not address his contentions that Agent Derrick was not a qualified expert, and that the prejudicial impact of this evidence outweighed whatever probative value it may have had. State v. Council, supra. The Jones reliability factors take into consideration:

(1) the publications and peer reviews of the technique;

(2) prior application of the method to the type of evidence involved in the case;

(3) the quality control procedures used to ensure reliability; and

(4) the consistency of the method with recognized scientific laws and procedures. State v. Council, supra.

The State relies most heavily on Kennedy to establish that there is a science underlying “barefoot insole impressions.” While Kennedy testified that he had published several peer-reviewed articles, he also testified that he was still in the process of collecting data in order to determine which standards were appropriate for comparison purposes. Further, he candidly acknowledged that earlier work in this area had been discredited.

We find the evidence presented here insufficient to meet the Jones’ requirements that: (1) the technique be published and peer-reviewed; (2) the method has been applied to this type evidence; and (3) the method be consistent with recognized scientific laws and proceedings. In our opinion, it is premature to accept that there exists a science of “barefoot insole impressions.”

[343 S.C. 574] An additional issue arises here as the result of the Jones requirement that the quality control procedures used ensure reliability. Neither Agent Derrick nor anyone connected with SLED had ever done this type of test before. Further, Agent Derrick admittedly had not conducted the testing in conformity with SLED’s quality control precautions. The director of the SLED laboratories testified that SLED requires a written protocol on all laboratory procedures, which must be “thoroughly tested to prove their scientific validity, accuracy and repeatability.” Here, there was no written protocol in existence[6] when Agent Derrick conducted his testing, much less one which had been subjected to SLED’s quality control policies.

We find, therefore, that the trial judge erred in permitting expert testimony purporting to demonstrate that “barefoot insole impression” testing revealed appellant’s foot to be consistent with the impression made by the primary wearer of the “steel toe” boot. The admission of this evidence mandates reversal of appellant’s convictions.

In the Vangelder case, the defendant’s proffered expert witness, Dr. Michael P. Hlastala, testified as to his credentials as follows: he is a professor of medicine, physiology, biophysics and bioengineering at the University of Washington. Dr. Hlastala has been studying the physiology of alcohol and the way alcohol is measured in testing procedures for 25 years. He has written more than 400 articles, including approximately 170 peer-reviewed articles and a text book on the subject. Additionally, he has testified in this area in approximately 30 states. Without question, Dr. Hlastala would be received as an expert in the field of breath testing in South Carolina courts.

4. Sixth Amendment, United States Constitution:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

Below please find an article which I recently authored regarding a defendant’s Sixth Amendment right to confront witnesses relating to laboratory and forensic reports used in DUI/drunk driving prosecutions.

At the conclusion of this year’s session, a splintered Supreme Court authorized the use of laboratory reports during trial without allowing the defendant an opportunity to cross-examine the technician who created the report. Williams v. Illinois 567 U.S. __(2012). This opinion is a slight retreat from recent rulings that broadly interpreted the Sixth Amendment “right of confrontation” in favor of defendants in comparable cases (Crawford v. Washington, 541 U.S. 36, 50 (2004), Melendez-Diaz v. Massachusetts, 557 U.S. 305, 330 (2009),and Bullcoming v. New Mexico, 564 U.S. ____(2011)).

Williams v. Illinois

Justice Samuel Alito, writing for a four-justice plurality, affirmed that the testimony of an expert witness based upon a test that the testifying expert did not personally perform is admissible and does not violate the defendant’s Sixth Amendment rights. The Court held that because the evidence of the third-party test was not offered to prove the truth of the matter asserted (but merely to provide a basis for the conclusions that the expert reached), the prosecution had not infringed on the defendant’s Sixth Amendment right to confront and cross-examine witnesses. The Court’s ruling hinged on the following: First, the government witness testified and concluded that the DNA report in question matched a profile report the state laboratory had previously produced using a sample of Williams’ blood. Second, the government witness proffered was available to the defendant for cross-examination during trial. Accordingly, the Court concluded that the testimony offered did not fall within the bounds of a Confrontation Clause violation because the results were considered (by the testifying witness) for the limited purpose of seeing whether it matched the profile report from the state laboratory. The DNA report was not offered to prove the guilt of the defendant, as Williams was not a suspect at the time the test was conducted.

In Williams, the defendant (Sandy Williams) was convicted of two counts of aggravated criminal sexual assault and one count each of aggravated kidnapping and aggravated robbery in Illinois state court. At the defendant’s bench trial, Sandra Lambatos, a forensic specialist at the Illinois State Police lab, testified that she matched a DNA profile (of the defendant) previously produced by a private laboratory, Cellmark, to a profile the state laboratory produced using a sample of the defendant’s blood. Lambatos testified that Cellmark was an accredited laboratory and that business records showed that the evidence was taken from the victim, sent to Cellmark, and returned. That was the extent of her testimony.

The defense moved to exclude, on Confrontation Clause grounds, Lambatos’ testimony insofar as any reference to the Cellmark report as “hearsay.” The prosecution countered that the defendant’s Confrontation Clause rights were satisfied because he had the opportunity to cross-examine the expert who had testified as to the matching reports. The trial court admitted the evidence and found Williams guilty. Both the Illinois Court of Appeals and the Illinois Supreme Court affirmed the conviction, concluding that Lambatos’ testimony did not violate Williams’ Confrontation Clause rights because Cellmark’s report was not offered into evidence to prove the truth of the matter asserted.

The decision in Williams departs to some degree from the recent Supreme Court rulings referred to by the defense bar as “the trilogy.” However, the plurality in Williams felt that its decision was consistent with both the Melendez-Diaz and Bullcoming opinions (where the forensic reports were introduced for the purpose of proving the truth of what they asserted). Here, Cellmark’s report was considered and admitted for the limited purpose of seeing whether it matched something else, and the relevance of that match was established by independent circumstantial evidence—which showed that the report was based on a sample from the crime scene. Furthermore, the Court specifically noted in Williams that “the forensic reports in Melendez-Diaz and Bullcoming ran afoul of the Confrontation Clause because they were the equivalent of affidavits made for the purpose of proving a particular criminal defendant’s guilt.” In contrast, the Court went on to note in Williams that the primary purpose of the Cellmark report was to catch a dangerous rapist who was still at large, and not to obtain evidence for use against the defendant. Accordingly, there was no “prospect of fabrication” in the Court’s eyes.

Justice Elena Kagan (joined by Justices Ginsburg, Sotomayor, and Scalia) wrote a vigorous dissent, proclaiming, “Under our Confrontation Clause precedents, this is an open-and-shut case.” She found this case to be in the same vein as the trilogy of cases mentioned above where the Court found that in order to satisfy the requirements of the Confrontation Clause, the defendant must have the opportunity to cross-examine the analyst who performed the test. Without such an opportunity, an unreliable report is assumed to be true.

More specifically, the dissent suggests that the DNA profile report produced by an analyst at Cellmark’s laboratory is identical to the report in Bullcoming (and Melendez-Diaz) in “all material respects.” Therefore, Justice Kagan wrote, “under this Court’s prior analysis, the substance of the report could come into evidence only if Williams had a chance to cross-examine the responsible analyst.” However, that is not what happened.

“Instead,” wrote Justice Kagan, “the prosecutor used Sandra Lambatos—a state-employed scientist who had not participated in the testing—as the conduit for this piece of evidence.”

Finally, the dissent disagreed with the plurality’s conclusion that Cellmark’s report was not offered into evidence to prove the truth of the matter asserted, arguing that the “admission of the out-of-court statement in this context has no purpose separate from its truth; the factfinder can do nothing with it except assess its truth and so the credibility of the conclusion it serves to buttress.”

The “Trilogy”

The three primary opinions authored by the United States Supreme Court in the last ten years dealing with a defendant’s Sixth Amendment right to confront the witnesses against him started with the seminal opinion of Crawford v. Washington. Briefly, the facts of the Crawford case are as follows: Michael Crawford stabbed a man that he claimed was trying to rape his wife. During Crawford’s trial in state court, prosecutors played his wife’s tape-recorded statement given to the police describing the stabbing for the jury. The statement contradicted Crawford’s claim that he stabbed the man in defense of his wife. Crawford argued that allowing the jury to hear his wife’s prerecorded statement violated his Sixth Amendment right of confrontation because he was not allowed any opportunity to cross-examine the recording. Citing Ohio v. Roberts, 448 U.S. 56 (1980), the state Supreme Court upheld Crawford’s conviction. Roberts was a 1980 opinion in which the U.S. Supreme Court upheld an Ohio state court conviction where the state was allowed at the trial level to offer the preliminary hearing transcript of a critical witness in lieu of live testimony. The U.S. Supreme Court held that the use of the transcript testimony did not violate the Confrontation Clause because it bore an adequate “indicia of reliability”—and that in such cases, this type of evidence would fall “within a firmly rooted hearsay exception.”

In a unanimous opinion written by Justice Scalia, the Court reversed Crawford’s conviction and ruled that his Sixth Amendment right to confront and cross-examine witnesses against him had been violated. Defendants have the constitutional right to confront witnesses and cross-examine their testimony in criminal prosecutions. This holding directly overruled Roberts. In summary fashion, the Court held that the framers of the Constitution designed the Confrontation Clause to strictly prohibit out-of-court testimony as evidence against a defendant—again, without the benefit of the defendant being allowed to cross-examine the testimony.

In Crawford, Justice Scalia recited a detailed history of the Confrontation Clause. He went on to describe the context in which the framers of the Constitution drafted the clause and gave numerous examples of how American courts have interpreted the clause over the years. Scalia concluded that the Confrontation Clause of the Sixth Amendment applies to any “witnesses” against the defendant, meaning any person, statement, or document whose purpose was to “bear testimony.” The Crawford opinion has been consistently viewed as a bellwether case for defendant’s rights. It had an immediate and far-reaching effect in criminal courts nationwide. Previously, prosecutors had been enjoying a fair amount of leeway involving the use of affidavits and lab reports (where they gained admission through various exceptions to the hearsay rule). In Crawford, the Court expressly held that any out-of-court statement that was “testimonial in nature” was not admissible unless the defendant had the opportunity to cross-examine the declarant.

In Melendez-Diaz v. Massachusetts, the Court applied the standard as set forth in Crawford to a state forensic laboratory report. Briefly, in the prosecution of a drug case against Melendez-Diaz, the trial court allowed lab reports identifying the substance as cocaine without any testimony from the analyst. In a 5–4 decision, the Supreme Court held that because the lab report was prepared for use in a criminal prosecution, the Sixth Amendment Confrontation Clause demanded that the defendant be given the right to cross-examine the author of the lab report. As set forth in Crawford , the Supreme Court held that the laboratory report prepared and used in a criminal prosecution was “testimonial in nature,” and that the defendant had a fundamental Sixth Amendment right to confront and cross-examine the analyst who prepared the report prior to it being admissible.

In 2010, the Court revisited the Crawford and Melendez-Diaz opinions in a case involving a laboratory report of a blood alcohol reading in a DUI case. Once again, and in a 5–4 decision, the Court held a line that it created in Crawford. In Bullcoming v. New Mexico, the Supreme Court held that the admission of the blood alcohol report without the actual testimony of the person who prepared the report violated Bullcoming’s Sixth Amendment rights. Specifically, Justice Ginsburg stated, “The Confrontation Clause (of the Sixth Amendment) does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification (as to its accuracy), made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform the test. . . .”

Conclusion

The trilogy opinions had a huge impact in helping defendants accused of DUI or drug charges obtain a fair trial where they are allowed to cross-examine the laboratory analyst who performed the examination. Any breath alcohol test, blood alcohol test, or forensic drug examination of any type must be accompanied by the officer or laboratory technician who per­formed the test before it can be admissible. Critically, this allows a defendant the right to vigorously confront and cross-examine the witness regarding the obtaining, handling, storage, and testing of the sample. In Williams, the Court pares a defendant’s right to confront laboratory test evidence prepared by an unavailable witness. However, the Williams opinion does not appear to infringe upon a defendant’s right of confrontation where the laboratory report offered would be considered “testimonial in nature” and “offered as proof of truth of the matter asserted.”

I believe that it is a clear violation of a defendant’s Sixth Amendment rights to not be allowed to present expert testimony to challenge the general accuracy and reliability of breath testing machines in DUI/drunk driving cases. The Sixth Amendment guarantees a defendant the right to “be confronted with the witnesses against him.” One of the primary “witnesses” against a driver in a DUI/drunk driving case is a breath test result (if the driver took the breathalyzer test). Expert testimony of the type offered in the Vangelder case obviously falls under the protections of the Sixth Amendment.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

Within the last year the American Civil Liberties Union of North Carolina started an investigation into the checkpoint policy and procedures being employed by the Jackson County, North Carolina Sheriff’s Department. Apparently the Jackson County sheriff’s office was coordinating “seat belt checkpoints” with federal immigration officers with the target being illegal immigrants, and ultimate deportation. At one checkpoint at least 15 illegal immigrants were arrested. The ACLU brought a complaint of “targeting” against the sheriff’s office for the way the checkpoints were conducted. On October 29, 2013 it was announced by the ACLU that an agreement had been reached with the Jackson County sheriff’s office ending the practice. The sheriff’s office confirmed that they will no longer coordinate any vehicle checkpoints/road blocks with federal agencies such as immigration and customs enforcement. Read More

It would appear to me that the checkpoint policy used by Jackson County clearly violated the US Supreme Court decision of Edmond (531 U.S. 32, 48 (121 SCt 447, 148 LE2d 333 (2000)). In Edmond, the US Supreme Court held that a police checkpoint whose purpose is general crime control is unreasonable under the 4th Amendment under the US Constitution. If a court determines that the primary purpose of the checkpoints at issue was “general crime suppression” rather than legitimately a driver’s license checkpoint than any arrests arising from it would be unconstitutional.

In South Carolina, the state supreme court, in State v Groome (378 S.C. 615, 619, 664 S.E.2d 460, 462 (2008)) affirmed a circuit court ruling suppressing drugs found after the defendant was stopped at a driver’s license checkpoint. Controlling in the decision was referenced to the Edmond case and a determination that the checkpoint at issue had the “primary purpose of general crime suppression rather than merely a driver’s license checkpoint.”

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

Within the last year the American Civil Liberties Union of North Carolina started an investigation into the checkpoint policy and procedures being employed by the Jackson County, North Carolina Sheriff’s Department. Apparently the Jackson County sheriff’s office was coordinating “seat belt checkpoints” with federal immigration officers with the target being illegal immigrants, and ultimate deportation. At one checkpoint at least 15 illegal immigrants were arrested. The ACLU brought a complaint of “targeting” against the sheriff’s office for the way the checkpoints were conducted. On October 29, 2013 it was announced by the ACLU that an agreement had been reached with the Jackson County sheriff’s office ending the practice. The sheriff’s office confirmed that they will no longer coordinate any vehicle checkpoints/road blocks with federal agencies such as immigration and customs enforcement. Read More

It would appear to me that the checkpoint policy used by Jackson County clearly violated the US Supreme Court decision of Edmond (531 U.S. 32, 48 (121 SCt 447, 148 LE2d 333 (2000)). In Edmond, the US Supreme Court held that a police checkpoint whose purpose is general crime control is unreasonable under the 4th Amendment under the US Constitution. If a court determines that the primary purpose of the checkpoints at issue was “general crime suppression” rather than legitimately a driver’s license checkpoint than any arrests arising from it would be unconstitutional.

In South Carolina, the state supreme court, in State v Groome (378 S.C. 615, 619, 664 S.E.2d 460, 462 (2008)) affirmed a circuit court ruling suppressing drugs found after the defendant was stopped at a driver’s license checkpoint. Controlling in the decision was referenced to the Edmond case and a determination that the checkpoint at issue had the “primary purpose of general crime suppression rather than merely a driver’s license checkpoint.”

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

Earlier this week the Colorado Department of Public Health and Environment finally announced that its laboratory will not resume testing blood samples for alcohol concentration in DUI/drunk driving cases. The final decision to not resume testing of samples for blood alcohol concentration comes four months after a highly critical report revealed concerns about the quality and reliability of blood alcohol testing at the Colorado state toxicology laboratory. Read More

In July of 2013 the state laboratory suspended all testing of blood alcohol concentrations in samples provided after an internal report surfaced citing, among other things, concerns that a previous supervisor openly “pulled for” the prosecution, a failure to properly train laboratory employees and pressure for the employees/technicians and chemist to proffer slanted testimony about procedures used in the laboratory in testing of samples in criminal cases, such as DUI/drunk driving cases.

The state of Colorado has decided to continue to use the private labs that were previously under contract to continue providing the work for the state of Colorado. These private labs had been used by the state of Colorado for the testing of blood samples since the shutdown in July.

According to Dr. Larry Wolk, executive director and chief medical officer for the Colorado Health and Environment department, “There is no unmet public health need for the state to resume performing blood alcohol services;…these services can be provided – and are being provided – by private sector laboratories at competitive prices.” In other words, the Colorado state laboratory has been permanently shut down after further investigation into the factors cited above.

At the Steve Sumner Law Firm we are keen to the issues surrounding a blood sample in a DUI/drunk driving case. Some, but not all, of these issues would be as follows:

1. Were all proper protocols and procedures followed, according to the manufacturer, when the blood sample was taken?

2. Was an alcohol based swab used to clean the skin where the sample was taken from?

3. Was the sample handled properly, and according to protocol, prior to being turned over to the police?

4. Was the sample stored properly prior to being transported to Columbia to the South Carolina Law Enforcement Division for their laboratory testing?

5. How was the blood sample transported from the field to the Columbia laboratory for testing?

6. How was it stored at the South Carolina Law Enforcement Division upon its receipt but prior to testing?

7. Was the SLED laboratory technician qualified at the time to conduct testing of the blood sample?

These are just some of the issues that we examine and raise on behalf of our clients in defending DUI/drunk driving cases.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

In each of these cases before the Court the defendant was arrested for DUI/drunk driving; after which each was advised by the arresting officer that underCalifornia’s implied consent law they were required to take one of two chemical tests. All of the defendants opted for a blood test or blood draw. In all of the cases the arresting or transporting officer witnessed the blood draw, observed the defendant having the area cleaned before the blood was drawn and observed the injection area being bandaged following the blood draw. Read More

Each defendant filed a motion to suppress evidence of the blood draw prior to the trial of their case.

PROCEDURAL HISTORY:

The basis for the defendants motions to suppress were that under Schmerber v California (1966) that the blood draws were not performed in a constitutionally reasonable manner.

In six of the seven cases before the Court, the trial court denied the defendants motions to suppress under Schmerber and the 4th Amendment.

In a 2 to 1 decision, the initial appellate division sided with the defendants on the suppression motions and held that the evidence presented by the prosecution at the suppression hearing, consisting solely of testimony from a police officer who described the nature and circumstances of the blood draws in question, was insufficient to show that the blood draws were performed in a reasonable manner under the 4th Amendment; reversing the trial court’s denial of the defendants motions to suppress.

This appeal followed.

ISSUE:

Did the record before the Court support a finding that the defendants’ blood was drawn in a manner that was unreasonable within the meaning of the 4th Amendment?

HOLDING:

No. The blood draws in each case before the Court passes muster under the 4th Amendment and the initial appellate decision is reversed and the trial court’s ruling is hereby reinstated. The Court held “the direct and uncontroverted evidence” from the police officer who observed the blood draw was sufficient to establish that each blood draw was performed in a reasonable manner.

The Supreme Court has long held that the touchstone of the 4th Amendment is “reasonableness.” In applying the “reasonableness” test, the United States Supreme Court has consistently declined to employ bright line rules and instead has emphasized the fact specific nature of a reasonableness inquiry in the cases before it. In Schmerber, (a DUI case from California), the US Supreme Court held that the 4th Amendments proper function is to constrain and protect against intrusions which are not justified in the circumstances or which are made in an improper manner. Therefore, the question in this case is whether or not the police were justified in requiring the defendants to submit to the blood tests, and whether the means and procedures employed in taking their blood respected relevant 4th Amendment standards of reasonableness.

In the cases before us the record is complete: the defendant’s blood was taken by a physician in a hospital environment according to accepted medical practices. There is nothing in the record before us that supports any type of inference that the manner of drawing the blood was unsanitary or subjected the defendants to any unusual pain or indignity. The testimony of a police officer, when he or she is the primary witness to the blood draw in question, may properly be considered in evaluating whether the blood draw was conducted in a constitutionally reasonable manner.

The un-rebutted evidence presented by the officers is sufficient to show that the blood draws were performed in a reasonable manner and pursuant to the 4th Amendment. Summarily, all of the defendants chose to have a blood test; the blood draws were performed by trained medical technicians; the procedures employed to obtain the blood samples were medically acceptable; and finally, the officers un-rebutted testimony shows that the blood draws did not expose any defendant to “an unjustified element of personal risk of infection or pain.” Accordingly, we are persuaded that the blood draws in these cases were conducted in a constitutionally reasonable manner.

IT IS ORDERED, that the opinions of the appellate division of the Superior Court of Alameda County, California are reversed, and the cases are hereby remanded to the trial court for further proceedings consistent with this opinion.

As I have blogged before, South Carolina drivers accused of misdemeanor DUI/drunk driving have the complete legal and absolute right to decline or refuse breath, blood or urine tests in DUI/drunk driving investigations. Unlike California, there is no provision under the South Carolina implied consent law allowing an arresting officer to force a blood draw in DUI/drunk driving cases. Under South Carolina code section 56-5-2950(B)(1) a person arrested for DUI/drunk driving must be advised in writing and verbally that “they do not have to take the test or give the samples…”

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

On November 18, 2010, Officer Robert Hammond observed the vehicle driven by the defendant, Angela Merriman, veer into his lane of traffic from the center turn lane. Officer Hammond then activated the video equipment in his patrol car and stopped Ms. Merriman’s vehicle. Subsequently, Officer Hammond conducted a horizontal gaze nystagmus field test, along with two other field sobriety tests which the defendant did not complete due to health issues. Afterwards, Officer Hammond placed the defendant under arrest for driving under the influence (DUI), reckless endangerment with a motor vehicle, reckless driving, driving under suspension and violation of the implied consent law. Read More

PROCEDURAL HISTORY:

On February 18, 2011, the defendant was indicated by a Warren County, Tennessee grand jury on all the charges. A trial was scheduled for July 15, 2011. While preparing the case for trial, the defendant’s attorney made two requests for the “field video.” The State was unable to locate the video recording. The defense filed a motion to dismiss the indictments, alleging that the State had failed to preserve potentially exculpatory evidence on her behalf.

Two days before the scheduled trial date, the trial court conducted an evidentiary hearing on the motion to dismiss. At the conclusion of the hearing, the trial court ruled that the State’s failure to preserve the video recording warranted dismissal of the DUI charge, reckless driving charge and reckless endangerment charge.

The State of Tennessee appealed the trial court’s ruling. The Court of Criminal Appeals affirmed the trial court, concluding that the trial court did not abuse its discretion in dismissing those three charges against the defendant for the State’s failure to preserve evidence. This appeal followed.

ISSUE:

Did the trial court err in holding that it would be fundamentally unfair to require the defendant to go to trial without the video recording made at the scene?

HOLDING:

No. The trial court did not abuse its discretion in choosing dismissal as an appropriate remedy for the State’s loss of the video recording. The Court specifically held, “We hold that the standard of review of a trial court’s determination as to whether a defendant was deprived of a fundamentally fair trial is de novo with no presumption of correctness. Deference should be given to the trial court’s findings of fact; however, unless the evidence preponderates otherwise. A trial court’s determination of the appropriate remedy for the State’s failure to preserve the evidence is reviewed under an abuse of discretion standard. Accordingly, we affirm the trial court’s dismissal of the charges of driving under the influence (DUI), reckless endangerment and reckless driving.

The seminal opinion issued previously by the Tennessee Supreme Court in the area of evidence destruction is State v Ferguson, S.W. 3d 912, (Tenn. 1999). In Ferguson, an officer administered two field sobriety tests at the scene of a DUI arrest. Additional field sobriety tests were conducted at the police station, and a video recording of those tests was inadvertently erased before the original recording had been reviewed. In Ferguson, the court explained that the loss or destruction of potentially exculpatory evidence may violate a defendant’s right to a fair trial. The Tennessee Supreme Court determined that the due process clause of the Tennessee Constitution was more broad that the due process required under the United States Constitution, and observed that fundamental fairness, as an element of due process, required a review of the entire record to evaluate the effect of the State’s failure to preserve evidence. The Ferguson opinion requires a trial court to determine “whether a trial, conducted without the lost or destroyed evidence, would be fundamentally fair?”

If the trial court then finds that the State has failed in its duty to preserve evidence, the trial court then must consider each of the following factors to determine the consequences of that failure.

1. The degree of negligence involved;

2. The significance of the destroyed evidence; and

3. The sufficiency of other evidence used at trial to support the conviction.

Ultimately, the trial court must balance these factors to determine whether a trial conducted without the missing or destroyed evidence would be fundamentally fair. If the trial court concludes that a trial would be fundamentally unfair without the missing evidence, then the trial court may then impose an appropriate remedy including dismissal of the charges.

In applying Ferguson to the case at bar; the court noted as follows: that the State had no duty to create a video recording of the defendant’s traffic stop; but when it did, it became a critical part of the State’s evidence against the defendant. The video recording possessed potential exculpatory value to the defendant, and no evidence comparable to this video recording could have been obtained through other means. The State had a duty to preserve the video recording and failed in its duty when it lost it.

The evidence presented to the trial court of the defendant’s guilt of the DUI charge was not overwhelming. Critically, there were no test results based on breath or blood analysis. The video recording became more significant in light of the relative strength, or lack thereof, of the State’s case. Full consideration of the Ferguson factors led the Court to conclude that the loss of the video recording in this case deprived the defendant of her right to a fair trial; and the trial court did not abuse its discretion in ordering dismissal of the DUI and the other two charges.

AFFIRMED.

For South Carolina drivers accused of DUI/drunk driving, the seminal case on point regarding the destruction of videotapes was rendered in State v Jackson, 302 S.C. 313, 396 S.E.2d 101 (S.C. 1990). In Jackson the South Carolina Supreme Court held that the defendant’s due process rights were violated when he was prosecuted for DUI after the charges had been dismissed and the videotape from his arrest had been destroyed (“In the case at bar, the videotape was clearly material”). The exculpatory value was apparent before its destruction. Additionally, Jackson had no other evidence and could not obtain any evidence of comparable value. Although the destruction of the tape was explained to the jury, the value of the tape could not be replaced. The Supreme Court went on to reverse Jackson’s lower court conviction for DUI.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

On April 17, 2013, the US Supreme Court issued its decision in a significant DUI/drunk driving case; McNeely v Missouri. On April 18, 2013, I posted a summary of the decision on the website JD Supra (see below). It has recently been reported that Stearns County is set to become the first county in Minnesota that would require police to obtain a search warrant before taking a blood sample from a suspected DUI/drunk driver when they refuse a breath test after a traffic stop. Minnesota drivers are currently read an advisement (when suspected of drunk driving), and are stopped by law enforcement. The current advisement informs drivers that they are required to submit to a chemical test at the request of the police or face a separate criminal charge if they refuse. Read More

In light of the recent McNeely decision, local judges in Stearns County have been consistently ruling that the advisory recited above is unconstitutional. Prosecutors are now advising the police to no longer read the old implied consent warning to suspected drunken drivers; and instead, advise drivers that they will be asked to voluntarily submit to a chemical test; and if the driver refuses, the arresting officer will then need to obtain a search warrant prior to taking a blood sample from the driver.

Since the McNeely decision, Stearns County judges have consistently ruled that the implied consent law is unconstitutionally coercive due to the separate criminal penalty that comes with refusing the breath test in a DUI/drunk driving case. Briefly, in McNeely, the US Supreme Court ruled that the mere fact that alcohol dissipates in the blood stream is not alone enough to establish probable cause to force a driver to submit to a blood sample. Currently, Minnesota is one of the states where the mere fact of dissipation of alcohol has been reason enough to take a blood sample in DUI cases without a warrant.

The Stearns County sheriff’s office has recently received training about the new procedure and has stopped reading the implied consent advisory noted above in DUI/drunk driving investigations. The St. Cloud Police Department is expected to undergo training in the near future and will probable drop the advisory and get search warrants whenever drivers refuse the breath test.

This is a significant victory for motorists in Stearns County, Minnesota. Legal “probable cause” will have to be shown to a local judge, and a search warrant issued, before a driver suspected of DUI/drunk driving will have to submit a blood sample. ________________________________________________________________

The respondent McNeely was initially detained by aMissouristate police officer for speeding and crossing the center line in his vehicle. McNeely declined to take a breath test; and afterwards, he was arrested and taken to the nearest hospital for a blood test. The arresting officer never attempted to obtain or secure a search warrant prior to the blood test. The respondent refused to consent to the blood draw; however, the arresting officer then directed a laboratory technician to take a sample of McNeely’s blood. His blood tested well above theMissourilegal limit in DUI/drunk driving cases. McNeely was then officially charged with DWI (driving while intoxicated).

PROCEDURAL HISTORY:

At the trial level McNeely moved to suppress the results of his blood test arguing that the forcible taking of his blood without a warrant violated his Fourth Amendment rights under the United States Constitution. After hearing arguments from the defendant and the state, the trial court agreed and suppressed the blood alcohol reading from the trial of the case. In ruling for the defendant, the trial court opined that the “exigency” exception to the warrant requirement under the Fourth Amendment did not apply in the case at bar because, apart from the lone fact that McNeely’s blood alcohol level was dissipating at the time of the seizure, no other circumstances suggested that the arresting officer faced any kind of emergency.

The district attorney’s office appealed the trial court ruling to the Missouri State Supreme Court. In affirming and upholding the trial court’s ruling, the Missouri Supreme Court relied on the previous US Supreme Court decision of Schmerber v California 384 U.S. 757 (where the US Supreme Court upheld a DWI/DUI suspect’s warrantless blood test where the officer “might reasonably have believed that the was confronted with an emergency situation, in which the necessary delay to obtain a warrant under the particular circumstances threatened to lead to the destruction of evidence.”) The Missouri Supreme Court focused on the fact that the case at bar involved a routine DWI/DUI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was any type of emergency; and therefore, the non-consensual warrantless blood draw violated the respondent’s right to be free from unreasonable searches of his person pursuant to the Fourth Amendment of the United States Constitution.

The state then appealed to the United States Supreme Court.

ISSUE:

Does the lone factor that a suspect’s blood alcohol level is dissipating justify a warrantless blood draw in DUI/drunk driving cases?

HOLDING:

No. The judgment of the Missouri Supreme Court and theMissouritrial court is affirmed. In drunk driving investigations, the natural dissipation of alcohol in a suspect’s blood stream does not constitute an “exigent circumstance” in every case sufficient to justify conducting a blood test without a warrant.

A warrantless search of a person is reasonable only if it falls within a recognized exception. One recognized exception applies when “the exigencies of the situation” make the needs of law enforcement so compelling that a warrantless search is objectively reasonable. This court looks to the totality of the circumstances present in determining whether or not an exigent situation exists.

In the case at bar, the state of Missouri seeks a “per se” rule, contending that exigent circumstances always exist when a police officer has probable cause to believe that a person has been driving under the influence of alcohol because this type of evidence is inherently evanescent. In cases such as this, a careful case by case assessment must take place. When officers in drunk driving (DUI) investigations can reasonably obtain a warrant prior to having a blood sample drawn without significantly undermining the efficiency of the search, the Fourth Amendment of the United States Constitution mandates that that procedure be followed. Again, each case must be decided on its own individual facts. Critically, because an officer typically must take a DWI/DUI suspect to a medical facility or breath testing facility to determine, some delay between the time of the arrest and the time of the test is inevitable regardless of whether a warrant is obtained or not. In other words, dissipation of alcohol in a person’s blood stream is going to happen in every case, not just this one. Additionally, the state’s seeking of a “per se” rule also fails to account for advances in the 47 years since the Schmerber decision. While the natural dissipation of alcohol in a person’s blood may support an exigency finding in a specific case, as it did in Schmerber, it does not categorically do so in all DWI/DUI cases.

This court has consistently recognized that any compelled intrusion whatsoever into the human body implicates significant and constitutionally protected privacy interest of that individual. The government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in that particular case. The government’s other arguments advancing support of a “per se” rule are unpersuasive.

Accordingly, the judgments of the lower courts are affirmed. When the lone factor justifying a warrantless seizure of a person’s blood is that the alcohol is dissipating, and no other exigent circumstances exist, a search warrant must be obtained prior to the taking of the blood sample.

Officers Dale Owens, Donnie Gilbert, Ken Hancock and K-9 Deputy Jason Carraway, all of the Spartanburg County, Sheriff’s Office) were patrolling US Interstate-85 in Spartanburg County around 1:00 a.m. Owens observed the defendant (Ashley Eugene Moore), traveling an estimated 10 miles an hour over the posted speed limit. Owens also observed Moore execute an improper lane change. Owens activated his blue lights and stopped the defendant. Owens testified that it took the defendant longer than the average motorist to stop and that he failed to release his left turn signal. Officer Owens observed Moore talking on his cell phone as he approached the vehicle. Owens opined that the average motorist would have ended the phone call when an officer approached their vehicle and that drug traffickers often leave a cell phone on so that their superiors can hear the contents of the traffic stop. An alcoholic odor emanated from the defendant’s vehicle. Moore informed Owens that the vehicle was a rental and provided the rental agreement, along with his driver’s license. Officer Owens testified that the defendant was extremely nervous, with his hands shaking noticeably and his breathing clearly accelerated. The defendant consented to a “pat down search”. Officer Owens observed and seized “a large wad of money” from Moore’s person. Moore had indicated he was unemployed. Moore stated he was travelling from a suburb of Atlanta to Marion, North Carolina to visit his grandmother. It was determined that a third party had rented the vehicle for Moore. Moore declined consent for Officer Owens to search the vehicle. Read More

Subsequently, Owens issued a warning ticket to Moore for his moving violations. Critically, Officer Owens decided to detain Moore until the K-9 drug unit could arrive. The dog alerted to an odor inside the car and the officer searched the vehicle. Crack cocaine was found in two containers in a bag in the trunk, along with a semi-automatic weapon and a bundle of currency.

Moore was indicted for trafficking crack cocaine and possession of a weapon during the commission of a violent crime.

PROCEDURAL HISTORY:

Moore’s case was called to trial on April 25, 2011. The defendant’s attorney argued for suppression of all the evidence found from the K-9 search on the basis that Officer Owens lacked “reasonable suspicion of criminal activity” to further detain Moore beyond the scope of the initial traffic stop which ended when the warning ticket was issued. The state argued against this motion for suppression. The trial judge denied the defendant’s motion for suppression and Moore was convicted on both charges.

ISSUE:

Did the seizure and subsequent search of the defendant, and his vehicle, violate the defendant’s 4th Amendment rights?

HOLDING:

Yes. The trial court’s denial of the defendant’s motion to suppress evidence was in error. Although the arresting officer testified and pointed out multiple factors for his extended detention of the defendant, these factors (nervousness, a wad of cash money and unusual travel plans) do not eliminate a substantial portion of innocent travelers and do not pass muster under state and federal case law construing a citizen’s 4th Amendment rights.

In the case at bar, testimony regarding “alleged flight indicators” on the part of the defendant lost the majority of their significance when the defendant cooperated, stayed throughout the traffic stop and performed field sobriety tests. A “wad of money” (when it could have consisted of one dollar bills or 100 dollar bills?) does not reasonably contribute to an officer’s suspicions.

In summary, we find that the state presented a similar case to State v Tindall, 388 S. C. 518, 698 S.E. 2d 203 (2010). In Tindall, the defendant was driving to visit a family member, the vehicle was rented by a third party, he was coming from a major city known as a drug hub and he displayed nervous conduct throughout the entire traffic stop. Clearly, these facts did not provide Officer Owens with reasonable suspicion of a serious crime; and when the defendant declined the request to search the vehicle, his continued detention was illegal. The weapon and drugs discovered during the search of the vehicle should have and must be suppressed.

REVERSED.

On August 9, 2013 I posted a write-up of a critical opinion recently issued by the South Carolina Court of Appeals for defendants in traffic stop cases. Clearly, the logic employed in the Moore opinion can have a direct and positive impact in South Carolina DUI/drunk driving cases. For example I argued under similar cases for a client in 2011 and was able to convince the judge to dismiss the pending DUI. Briefly, the facts elicited before the court are as follows: The defendant (my client) was stopped in Greenville County, South Carolina for traveling 78 mph in a 45 mph zone. The deputy approached my client and requested his driver’s license and other basic information. This total interaction lasted approximately 1 minute and 15 seconds. The deputy then went back to his patrol car and stayed for approximately 12 minutes. Afterwards, he returned to my client’s car and issued him several traffic tickets. This interaction lasted approximately 1 minute and 30 seconds. After giving my client the two traffic tickets the officer then inquired about any previous alcohol consumption. Ultimately, my client was asked to perform field sobriety tests and then placed under arrest and charged with DUI/drunk driving.

I argued that the officer lacked “reasonable suspicion of further criminal activity” to continue the defendant’s detention beyond the point where he had issued him the two traffic tickets. The court agreed and granted our motion to dismiss under the 4th Amendment and under the very same logic and argument as presented in State v Moore.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

This past week the city counsel of Richmond, California became the latest city to implement a “ban the box” law regarding new employees. The Richmond ordinance prohibits city contractors from ever inquiring about the criminal histories and criminal background of many job applicants. “Ban the Box” laws are ordinances or statutes that prohibit an employer from requiring an applicant to check a box if the applicant has a criminal record. Under the Richmond ordinance, private companies that have city contracts and employ more than nine people will not be able to ask anything about an applicant’s criminal record. Read More

Richmond, California is the latest city to become a part of a growing national trend prohibiting prospective employers from inquiring into the criminal history/background of an applicant. Richmond was the 52nd municipality in the United States to have passed similar ordinances within the past five years. Just last year, Newark, New Jersey passed an ordinance banning private employers and the city government from inquiring into a job applicants criminal history until the employer had made a conditional offer of employment.

In addition to municipalities, 10 states have enacted “ban the box” legislation. Most of the laws do not apply to job applications for “sensitive’ positions.

Last year, the US equal Employment Opportunity Commission issued guidance that while not banning the use of criminal background checks, urged employers to consider the crime, its relation to an applicant’s potential job and how much time had passed since the conviction.

At the office of Attorney Steve Sumner we understand that a conviction for DUI/drunk driving will stay on a person’s record for their lifetime. A DUI conviction in South Carolina is not ever eligible to be expunged, no matter how much time passes. For example, if a person gets a DUI/drunk driving conviction and remains crime free for 10 years, the DUI/drunk driving conviction is still not able to be expunged. Neither South Carolina nor any municipalities in upstate South Carolina have enacted any form of “ban the box” legislation. At the office of Attorney Steve Sumner we will relentlessly, aggressively and tirelessly work to avoid a criminal conviction for DUI/drunk driving.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

On July 24, 2013 it was reported from the State Law Enforcement Division in Columbia, South Carolina that hearings in DUI/drunk driving cases would have to be postponed while SLED works to restore and/or repair a computer server that contains over 22 years worth of evidence in DUI/drunk driving cases. Read More

The computer server/system is the only computer that maintains all of the critical status records for breath testing machines across the state of South Carolina. These status records are meticulously kept on each machine on use from the time it begins its service through the present. The status records monitor temperature ranges, detections of interference, the need to change solutions, simulator temperature solutions and like type information.

Thom Berry, SLED spokesman, says that due to a lightning strike the database of breathalyzer records has been down since July 5, 2013 and won’t be back on line until next month.

While Berry insists none of the stored data has been lost, only time will tell on that point.

At the Steve Sumner law Firm, an extensive examination of the status records on a machine are part of our standard workup in a DUI/drunk driving case. Has the machine in your case shown a pattern of errors in the past? Failures to take samples? Invalid temperature ranges? All of these records are critical to determining whether or not a client received a fair breath alcohol test in a DUI/drunk driving case.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

In May of 2013, the National Transportation Safety Board (NTSB) publicly advocated a push for all states to lower the blood alcohol limit in drunk driving cases to .05%. This announcement was spearheaded by multiple news conferences and press releases. In a July 15th, 2013 story, the Washington Times reports that this effort is meeting with little success. According to the NTSB, the primary justification for lowering the blood alcohol limit in drunk driving cases was that “Drivers with .08% blood alcohol levels have double the chance of being involved in an accident as drivers with .05% levels”. Read More

However, the Washington Times reports that neither MADD nor the Governor’s Safety Association has endorsed the change. According to Jonathan Adkins, Deputy Executive Director for the Governor’s Highway Association, “We don’t see any state going to .05%, this doesn’t seem to be gaining any traction”.

Additionally, Indiana State Representative Terri Austin said that it does not look likely that any states appear ready to approve any laws that would lower the blood alcohol limit to .05%. Austin was quoted as saying “I think legislators are going to want to have a pretty compelling case (before moving on any bills of that nature)”.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina

I typically receive several phone calls a year from people who “just need to get an old DUI off my record.” The conversations generally involve an individual requesting that I assist them in removing a misdemeanor DUI/drunk driving conviction from their criminal record. Typically the caller will go on to tell me that the DUI/drunk driving conviction happened many years ago and that their life has changed dramatically since then but that this conviction continues to come up in interviews and background checks. Read More

When can a South Carolina driver convicted of DUI/drunk driving have the conviction removed from their record? Never. A misdemeanor DUI/drunk driving conviction in South Carolina remains a part of a South Carolina citizen’s criminal history and/or criminal record for the rest of their life. Under no circumstances can this conviction be expunged or removed from the driver’s record. A South Carolina conviction for DUI/drunk driving remains on the person’s driving record for 10 years and on their criminal history for life.

Criminal background checks and criminal history checks are a big part of the landscape in the interview and hiring process. Because of this reality, it is critical that a South Carolina driver accused of DUI/drunk driving take every step they can to avoid a criminal conviction of this charge.

This issue was recently brought to light, again, when the federal government filed a lawsuit against BMW’s use of criminal background checks at its manufacturing plant in Greer, South Carolina. The United States Equal Employment Opportunity Commission has brought a lawsuit against BMW charging that the automaker violated the civil rights act in instances of dismissing workers and denying employment (primarily based upon criminal background checks). While the lawsuit contends that BMW unfairly screened out minorities from jobs, it is a critical reminder to all South Carolina drivers of the need to have a clean criminal background history if at all possible. The EEOC stated that since 1994 BMW has maintained a criminal conviction policy that denies facility access to employees and contract employees where certain criminal convictions are present. According to the EEOC, the BMW policy which is a blanket exclusion of individuals with criminal convictions, without an individual assessment of the conviction, unfairly and disproportionately affected some workers and applications of individuals who wanted to work at BMW. Additionally, there were some current BMW employees who were terminated, despite having worked at BMW for many years, because a criminal history check discovered a past criminal conviction.

At the Steve Sumner Law Firm we will work as hard as we can to avoid any type of permanent criminal conviction when a client is accused of DUI/drunk driving.

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.

According to the New York Times, a group of criminal defense attorneys stated yesterday that many criminal cases and/or convictions were in jeopardy after investigators hired by the state of Colorado found problems and flaws in the handling of evidence at the state toxicology laboratory in Denver. Colorado state officials conceded that problems have been identified in the division that processes blood-alcohol samples. Last year Colorado was forced to retest hundreds of samples from the toxicology lab after discovering that an employee had deviated from established testing procedures. On Monday, accusations about Colorado’s toxicology lab were made public. Read More

South Carolina motorists arrested for DUI or drunk driving will be searching for an attorney experienced in challenging the accuracy of blood alcohol samples. South Carolina has stringent statutory requirements in DUI/drunk driving cases regarding the taking, handling and testing of blood alcohol samples in these type cases.

Were all of these requirements scrupulously followed in your case? At the Steve Sumner Law Firm we thoroughly examine every phase of blood sample evidence in DUI/drunk driving arrests. Just to name a few: Was the sample taken properly? Packaged properly? Stored properly? Transported properly?

South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a “South Carolina Super Lawyer”**in the field of DUI defense. He is a member of the “National Trial Lawyers: Top 100 Trial Lawyers”. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina. You can contact him at upstatedui.com or 864-235-3834. His office is located at 1088 N. Church Street, Greenville, SC 29601.

CAPSULE: On February 5, 2013, the Georgia Court of Appeals upheld the trial court’s denial of a Defendant’ s Motion to Suppress evidence gleaned from a traffic stop following an officer’s use of a license plate reader system (LPR). In summary, the Court denied the Defendant’s argument that (1) the officer lacked reasonable suspicion to stop the vehicle and (2) that the LPR system failed to meet proper evidentiary foundational requirements. Read More

FACTS: An officer with the Wynette Police Department was patrolling GA Hwy 316 in a police vehicle equipped with an LPR system. The LPR system is made up of cameras that read license plates of passing vehicles to transmit the information to a database of “wanted persons”. The database is updated daily and includes information provided by the Federal Bureau of Investigation and the Georgia Bureau of Investigation and the Georgia Department of Motor Vehicles. On the day in question, the LPR system alert indicated that the defendant in the case at bar, Eloy Hernandez-Lopez, was present in the vehicle. Upon identifying a relevant vehicle and seeing if was driven by an adult male the officer conducted a traffic stop. Following the investigation at the road side, Hernandez-Lopez was charged with “Driving without a Valid License”.

PROCEDURAL HISTORY: Hernandez-Lopez filed and argued a motion to suppress arguing that the officer lacked reasonable suspicion to perform a traffic stop based on the alert from the LPR system. The trial court denied the motion. Hernandez-Lopez filed an Interlocutory Appeal seeking to overturn the trial court’s ruling.

ISSUE: Was the trial court correct in denying the defendant motion to suppress?

HOLDING: Yes. Here, based upon the alert and information received from the LPR system, the officer had sufficient probable cause to believe that the male driver of the relevant vehicle was wanted for “Failure to Appear”; and this provided reasonable, articulable suspicion to conduct a traffic stop. Critically, the information received through the LPR system is similar to the way an officer retrieves data by the way of running vehicle tag numbers through GCIC, which this court has previously held provided legal justification for an initial traffic stop. Accordingly, the trial court was correct in denying the defendant’s motion to suppress on this ground.

South Carolina DUI Lawyer Steve Sumner exclusively handles misdemeanor and felony DUI defense. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell and a “Superb” ranking with Avvo. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina. You can contact him at upstatedui.com or 864-235-3834. His office is located at 1088 N. Church Street, Greenville, SC 29601.